I just hope its not during a Drive-By Trucker show!
People… like the legislators of Texas who meet in Austin! Rules for thee but not for me, am I right?
~Max
As of today is abortion a crime? I guess it is in Oklahoma.
I don’t think the idea is to necessarily to protect doctors who provide telemedicine services in violations of the laws where the patient is located. I think the idea is to protect doctors who provide abortion services in Connecticut (or other states where it is lawful) to out-of-state residents. Under the statute, as I read it, if Texas tried to indict a doctor for preforming an abortion in Connecticut for a Texas resident, then Connecticut would not extradite that doctor (as long as the abortion was legal under Connecticut law); similarly for an individual who obtains (or aids and abets the obtaining of) an abortion in Connecticut (or a third state) – as long as the acts in furtherance thereof took place in Connecticut.
It has become a common prediction among those who support abortion rights that there will be a surge of attempts by states to prosecute out-of-state doctors or their own citizens who travel to other states to obtain abortion services that are unlawful in the home state. I am very skeptical of that, so I can’t say whether it would have “any real effect”. But I think that’s the scenario it’s aimed to address.
I don’t know about Texas telemedicine laws in particular. I was just speaking in generalities.
As I read the Connecticut law, it prevents extradition of people who committed a crime in another state, despite not committing an act in that state, unless it was also illegal under Connecticut law.
To which I say, part of the legal construct that permits telemedicine (in any context) to work is the idea that the acts of practicing medicine are being committed where the patient is located (i.e., in our hypothetical, in Texas) and I assume that providing telemedicine in Connecticut while not being legally authorized to do so or doing so in violation of state laws and regulations is also a violation of Connecticut law.
So I would think that this scenario falls within two exceptions to the extradition statute.
That’s a bad analogy, as you likely wouldn’t ever find a store that was set up with the intent of promoting shoplifting.
A better analogy is a raid on a brothel. The whole point of the place is to promote prostitution, and when the police raid them, they pretty much arrest everyone. Maybe some of the charges don’t stick later, but you can bet that even the guy just playing the piano spent some time in handcuffs.
Even if the brothel provides other, legal, services as a cover, like a strip show or a burlesque show, they’d still tend to arrest everyone, and sort it out later.
The state prosecutor would first have to have a case to prosecute. That is, I think the state police would have to make an arrest first. IANAL. But there is nothing to prevent the state from prosecuting a violation of state law just because it occurred in an incorporated city.
I believe the governor of Connecticut already has discretion whether to arrest and surrender a person suspected of violating the laws of Texas while being physically present in Connecticut, under the Uniform Criminal Extradition Act. Because the suspect did not perform the act in Texas and then flee to Connecticut it wouldn’t trigger the rendition clause of the Constitution. The governor is prohibited from considering the person’s guilt or innocence but questions as to Texas’s power to legislate behavior occurring entirely in Connecticut would be fair grounds to deny the request.
It could be argued that the full faith and credit clause requires Connecticut to respect Texas’s statute criminalizing behavior in Connecticut, over its own statutes which do not criminalize such behavior. But I think that is a losing argument, as the Supreme Court wrote, “A rigid and literal enforcement of the full faith and credit clause, without regard to the statute of the forum, would lead to the absurd result that, wherever the conflict arises, the statute of each state must be enforced in the courts of the other, but cannot be in its own” Pacific Employers Ins. Co. v. Industrial Accident Commission, 306 U.S. 493, 501 (1939), quoting Alaska Packers Association v. Industrial Accident Comm., 294 U.S. 532, 547 (1935).
~Max
I think prosecutors - even Attorney General Paxton - can submit a warrant to the judge without going through police or local district attorney first, providing they have evidence to convince the judge. Which could be a social media post such as “I just got an abortion at XYZ clinic in Austin, TX!” If the judge signs off on the warrant are the local DA and police at liberty to simply ignore it?
~Max
As has been noted many times this week, the police are under no obligation to protect anyone, so it seems reasonable to conclude that they also have no obligation to actually enforce any particular warrant.
It’s not about any obligation to protect anyone. A warrant is a literal command from the judge to the police officer, isn’t it?
Texas Criminal Procedure Art. 18.01.
A “search warrant” is a written order, issued by a magistrate and directed to a peace officer, commanding him to search for any property or thing and to seize the same and bring it before such magistrate
~Max
He had that discretion until this new bill was signed by the current governor which specifically took that discretion away
The Governor of this state may also surrender, on demand of the
executive authority of any other state, any person found in this state
who is charged in such other state in the manner provided in section 54- 159 with committing an act in this state, or in a third state, intentionally resulting in a crime in the state whose executive authority is making the demand, and the provisions of this chapter not otherwise inconsistent shall apply to such cases, even though the accused was not in that state at the time of the commission of the crime and has not fled therefrom, provided the acts for which extradition is sought would be punishable by the laws of this state, if the consequences claimed to have resulted from those acts in the demanding state had taken effect in this state. (emphasis in original)
I guess my point was that nothing really changes with that provision, since you wouldn’t expect Governor Lamont to extradite a Connecticut abortion provider on suspicion of performing what is, in the jurisdiction of Connecticut, a lawful medical procedure.
Now, the main provision allowing abortion providers to sue any party that obtained judgements against them in any state for what Connecticut considers lawful abortion - that packs a punch, if it were to be found compliant with the federal constitution. Which I highly, highly doubt. Judgements of other state courts are sacrosanct under the faith and credit clause… how can one state create a liability for another party for the act of winning a judgement in another state? How can one state effectively reverse the judgement of another state court?
~Max
Yeah, I wouldn’t have expected Lamont to extradite in those circumstances - or else he wouldn’t have signed the bill. But it does change things for Future Governor Unknown.
I call your attention to an op-ed piece by a man described as the “Commonwealth Attorney for the county of Fairfax, VA” titled “My governor can pass bad abortion laws, but I won’t enforce them”: https://www.nytimes.com/2022/05/31/opinion/prosecutor-abortion-virginia.html
I agree with Max. I don’t think the police have any discretion in following a court order, such as a warrant.
never mind
I don’t understand what this has to do with the topic - the Commonwealth Attorney in Virginia is the prosecutor and therefore equivalent of the State’s Attorney or District Attorney in other places. When there is talk of a “city” not enforcing certain laws, it’s typically referring to a police department that is accountable to the city government and not to an elected prosecutor who is independent of the city government.
In the supreme court case Castle Rock v Gonzales didn’t the court say the police are under no obligation to enforce the law?
My understanding is there’s a difference between enforcing a law, in which police officers have discretion, and complying with a judicial order, which is mandatory.
In the case you referred to, Simon Gonzales did refuse to comply with a judicial order (a restraining order) and he would have been punished for doing so (except he was killed before the legal system had an opportunity to do so). But no judicial order had been given directly to the police. For the police it was a matter of enforcement not compliance.
Not exactly. The decision in that case was
We conclude, therefore, that respondent did not, for purposes of the Due Process Clause, have a property interest in police enforcement of the restraining order against her husband. It is accordingly unnecessary to address the Court of Appeals’ determination (366 F. 3d, at 1110–1117) that the town’s custom or policy prevented the police from giving her due process when they deprived her of that alleged interest.
In light of today’s decision and that in DeShaney, the benefit that a third party may receive from having someone else arrested for a crime generally does not trigger protections under the Due Process Clause, neither in its procedural nor in its “substantive” manifestations. This result reflects our continuing reluctance to treat the Fourteenth Amendment as “ ‘a font of tort law,’ ” Parratt v. Taylor, 451 U. S. 527, 544 (1981) (quoting Paul v. Davis, 424 U. S., at 701), but it does not mean States are powerless to provide victims with personally enforceable remedies. Although the framers of the Fourteenth Amendment and the Civil Rights Act of 1871, 17 Stat. 13 (the original source of §1983), did not create a system by which police departments are generally held financially accountable for crimes that better policing might have prevented, the people of Colorado are free to craft such a system under state law.
In DeShaney v. Winnebago County Department of Social Services , the decision was
Petitioner sued respondents claiming that their failure to act deprived him of his liberty in violation of the Due Process Clause of the Fourteenth Amendment to the United States Constitution. We hold that it did not.
Both involved due process claims and the decisions were that the state’s failure to protect an individual is not a violation of the Fourteenth Amendment . But these decisions don’t mean that a court can’t hold a police officer or a police department in contempt for refusing to enforce a court order directed at the police (such as an arrest warrant) or that a police department can’t discipline officers who stand by and do nothing or even that a state cannot by statute create a system where the police can be sued for failing to protect an individual.